In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-23-00055-CV

___________________________

On Appeal from Probate Court No. 2

Tarrant County, Texas

Trial Court No. 2014-GD00516-2-A 

Before Kerr, Bassel, and Walker, JJ.

Memorandum Opinion by Justice Bassel

Concurring and Dissenting Memorandum Opinion by Justice Walker

TEXAS HEALTH HARRIS METHODIST HOSPITAL SOUTHWEST FORT 

WORTH, Appellant and Appellee

V. 

JOHN DAVIS, INDIVIDUALLY AND AS GUARDIAN OF THE PERSON AND 

ESTATE OF ANGELA DAVIS, AN INCAPACITATED PERSON, 

Appellee and Appellant
2

MEMORANDUM OPINION

I. INTRODUCTION

Raising four issues, Texas Health Harris Methodist Southwest Fort Worth 

(Harris) appeals from a judgment in a medical-malpractice action rendered in favor of 

John Davis, individually and as guardian of his wife Angela Davis’s estate,1 following a 

jury trial. Davis filed his own notice of appeal raising two issues. Based on our 

disposition of Harris’s first two issues, we reverse the trial court’s judgment and 

remand this case to the trial court for a new trial.2

 

The question raised by Harris’s first issue is the primary one that we must 

answer: whether the trial court abused its discretion by allowing Davis to introduce 

into evidence the CMS3 Conditions of Participation—federal regulatory standards that 

govern whether a health care provider is eligible to accept Medicare or Medicaid—as 

proof of the applicable “standard of care.” Because the CMS Conditions do not 

impose a state common-law tort duty on hospitals and because their probative value, 

if any, was substantially outweighed by the danger of unfair prejudice, confusing the 

1

Because Angela was incapacitated by the injuries giving rise to this lawsuit, 

Davis was appointed as Angela’s legal guardian. This lawsuit was tried in the probate 

court as a proceeding ancillary to the guardianship case. See Estate of Stavron, No. 02-

20-00404-CV, 2021 WL 5227081, at *3 (Tex. App.—Fort Worth Nov. 10, 2021, no 

pet.) (mem. op.) (discussing probate court’s pendent and ancillary jurisdiction). 

2

Because Harris’s first two issues are dispositive, we will not address the parties’ 

remaining issues. See Tex. R. App. P. 47.1.

3

CMS stands for Centers for Medicare and Medicaid Services. See Christus 

Health Gulf Coast v. Aetna, Inc., 237 S.W.3d 338, 339 & n.1 (Tex. 2007).
3

issues, or misleading the jury, we conclude that the trial court abused its discretion by 

admitting them. Further, because the CMS Conditions gave the jury the false 

impression that Davis’s vicarious-liability theory—though invalid under Texas law—

had the imprimatur of the federal government, the admission of these regulations 

likely caused the rendition of an improper judgment. Accordingly, we sustain Harris’s 

first issue. 

But we overrule Harris’s second issue—which, because it seeks a rendition of 

judgment, we address first below—challenging the legal sufficiency of the evidence to 

support the jury’s negligence finding. In essence, Harris contends that because the 

medication error at the heart of this case was committed by an independent 

contractor, not a hospital employee, and because (1) Harris had no common-law duty 

to promulgate or enforce policies regarding independent contractors’ clinical activities 

and (2) Davis’s proposed medication-handling policy would not have prevented the 

error that caused Angela’s injuries, the evidence is legally insufficient to support the 

jury’s negligence finding against Harris. However, as we will detail below, Harris 

owed Angela a direct duty to use reasonable care in formulating the policies and 

procedures that govern its medical staff and nonphysician personnel, and the record 

contains ample evidence to support a finding that Harris’s breach of this duty 

proximately caused Angela’s injuries. Thus, remand—not rendition—is the 

appropriate remedy.
4

II. BACKGROUND

In May 2014, Angela underwent anesthesia for elective hip surgery at Harris. 

After receiving a spinal injection, Angela exhibited seizure-like activity, and it was 

ultimately determined that she had sustained very significant brain damage. Angela’s 

brain injury was likely caused by a substitution error whereby the blood-clotting 

medication tranexamic acid was accidentally injected into her spine instead of the 

anesthetic agent bupivacaine. 

At the time of Angela’s injury, Sundance Anesthesia, P.A. had an exclusive 

contract with Harris to serve as the hospital’s anesthesia provider. Thus, all of the 

medical professionals responsible for Angela’s anesthetic care—certified registered 

nurse anesthetists (CRNAs) Vicki Tucker and Heather Goforth and attending 

anesthesiologist Dr. Bruce Leitch4

—were employed by Sundance, not by Harris. 

Although Goforth was Angela’s assigned CRNA, Goforth and Tucker worked 

together to set up the operating room, each performing different tasks. While 

Goforth focused on setting up the anesthesia machine with the equipment that she 

would need during the procedure, Tucker drew up the medications. As part of this 

process, Tucker removed the anesthesia-related medications from the drawer of the 

4

Under the terms of the contract between Harris and Sundance, Dr. Leitch was 

designated as the Medical Director of Harris’s anesthesia department, which is an 

unofficial department within Harris’s department of surgery. 
5

Pyxis machine,5 affixed preprinted labels to the syringes identifying the medications to 

be drawn, and then proceeded to fill the syringes with the necessary medications. 

Although Goforth was in the operating room at the time, neither she nor any other 

person watched Tucker to verify that she had properly labeled the medications when 

placing them into the syringes. After Goforth, as the provider of record, initialed and 

dated the medication labels, the syringes were placed into safe storage in the Pyxis 

machine. 

After the operating room was prepared, Goforth went to meet Angela in the 

pre-op area. Once Angela was taken to the operating room, Goforth took the syringe 

that she believed contained bupivacaine, injected the contents into a sterile well, drew 

the fluid with a sterile syringe, and injected it into Angela’s spine. 

Following the spinal injection, Angela began kicking her legs and displaying 

other seizure-like activity. Accordingly, Dr. Leitch decided to switch to general 

anesthesia, and the surgery proceeded. But after the surgery, Angela did not wake up 

as expected. It was later determined that tranexamic acid had been inadvertently 

injected into Angela’s spine instead of bupivacaine and that she had suffered severe 

brain damage as a result. However, it is uncertain whether the substitution error was 

5

Goforth likened the Pyxis machine to a vending machine. She explained that 

when she input the patient’s name and selected the list of medications that she 

wanted, the Pyxis machine’s drawers would open up to dispense the medications. 

The machine requires service providers to log in and keeps a permanent electronic 

record of the medications it dispenses. 
6

caused by Tucker’s mislabeling of the syringes or by Goforth’s administration of the 

wrong, but correctly labeled, medication. 

In May 2016, Davis, acting both in his individual capacity and as guardian of 

Angela’s estate, filed suit against Harris, Sundance, Dr. Leitch, Goforth, and Tucker.6

 

Davis subsequently settled the claims asserted against Sundance, Dr. Leitch, Goforth, 

and Tucker; thus, Harris was the only defendant at trial. 

In his fourth amended petition,7 Davis alleged that Harris’s negligence—both 

direct and vicarious—had caused Angela’s injuries. According to Davis, Harris had 

directly violated the standard of care by failing to formulate, communicate, and 

enforce policies and procedures applicable to its medical staff and nonphysician 

personnel that were designed to minimize or prevent medication errors during the 

administration of anesthesia. Davis also alleged that Harris was vicariously liable for 

Dr. Leitch’s and Sundance’s failure to formulate and enforce policies designed to 

minimize or prevent medication errors in the anesthesia department because Dr. 

Leitch and Sundance were Harris’s nonemployee agents. 

6

Davis’s original petition also named several other physicians as defendants, but 

he nonsuited all claims against them. 

7

Davis filed a fifth amended petition on the eve of trial, but after Harris 

objected that it was untimely under the scheduling order and the procedural rules, the 

trial court signed an order striking it from the record. Thus, Davis’s fourth amended 

petition appears to be his “live” pleading. 
7

Specifically, Davis asserted that Goforth and Tucker had failed to follow a twostep medication verification process set forth in the Joint Commission’s8 National 

Patient Safety Goal (NPSG) 03.04.01 and that their failure to follow that process 

resulted in the mislabeling error that caused Angela’s injuries. Although Harris did 

not have a policy conforming to NPSG 03.04.01 that applied to the anesthesia 

department (which was entirely composed of independent contractors), it did have a 

somewhat similar dual-verification policy that applied specifically to its employees (in 

particular, scrub and circulator nurses) in the operating suite. Under Davis’s legal 

theories, Harris was liable—either directly or vicariously—because the absence of a 

dual-verification policy applicable to the anesthesia department had caused Angela’s 

injuries. 

At trial, Davis offered certain Joint Commission standards for hospital 

accreditation; a guideline promulgated by the American Association of 

Anesthesiologists (ASA); and the CMS Conditions—which, as noted above, are 

federal regulatory standards that govern whether a health care provider is eligible to 

accept Medicare or Medicaid—as evidence of the applicable standard of care and to 

show that Harris had a duty to exercise control over its independent contractors. The 

CMS Conditions in particular were offered to show that Harris and its governing 

8

The Joint Commission is the current name of the former Joint Commission on 

Accreditation of Healthcare Organizations, commonly referred to as the JCAHO. 

1 Health L. Prac. Guide § 10:25 (2024). The Joint Commission accredits and certifies 

more than 21,000 health care organizations and programs nationwide. Id.
8

board were responsible for all care provided within the hospital regardless of whether 

it was furnished by hospital employees or independent contractors. Harris objected 

to the admission of these documents and moved to strike and exclude witness 

testimony concerning them on both relevance and Rule 403 grounds, but the trial 

court overruled Harris’s objections. 

Ultimately, the jury found that Goforth, Tucker, and Dr. Leitch were either not 

negligent or not a proximate cause of Angela’s injuries by answering “No” to the 

following question: “Did the negligence, if any, of those named below proximately 

cause the occurrence in question?” The jury found that Harris’s and Sundance’s 

negligence had proximately caused Angela’s injuries and apportioned 35 percent of 

the responsibility to Sundance and the remaining 65 percent to Harris. The jury 

awarded Angela’s estate a total of $7,709,305 in damages and awarded Davis 

individually $661,000 in damages. 

Following extensive briefing by the parties on the topics of settlement credits, 

interest, and Harris’s request that the award of future medical expenses be paid 

periodically in the future, the trial court signed a final judgment awarding Angela’s 

estate a total of $1,768,529.27 for past and future noneconomic damages, past and 

future economic damages, and prejudgment interest after “applying the statutory 

damage caps pursuant to Chapter 74 of the Texas Civil Practice & Remedies Code.” 

In addition, the trial court—granting Harris’s motion for the periodic payment of 

future medical expenses and reducing the jury’s award by 35 percent based on Harris’s 
9

election of a percentage settlement credit—ordered Harris to pay Angela’s estate a 

total of $3,781,653.20 for future medical expenses in installments over nine years 

(with an allowance for attorney’s fees).9

 The trial court also awarded Davis 

individually a total of $490,778.74 in past and future noneconomic damages, past and 

future economic damages, and prejudgment interest. 

Harris timely appealed, and Davis filed a separate notice of appeal. 

III. DISCUSSION

On appeal, Harris raises four issues. First, it contends that the trial court 

abused its discretion by admitting the CMS Conditions and testimony concerning 

these regulations because this evidence was irrelevant and because its probative value, 

if any, was substantially outweighed by the danger of unfair prejudice, confusing the 

issues, or misleading the jury. See Tex. R. Evid. 402, 403. Second, Harris argues that 

the evidence is insufficient to support the jury’s finding that Harris’s negligence 

proximately caused Angela’s injuries. Third, Harris asserts that the trial court abused 

its discretion by admitting evidence referencing the Joint Commission standards and 

the ASA guideline because these documents are irrelevant to the standard of care and 

unfairly prejudicial under Rule 403. See Tex. R. Evid. 403. Finally, Harris argues that 

the admission of the CMS Conditions, the Joint Commission standards, and the ASA 

guideline constituted cumulative error that led to the rendition of an improper verdict. 

9

The judgment provided that in the event of Angela’s death, Harris’s futuremedical-expense payments were to cease immediately. Angela passed away on 

June 10, 2023. 
10

In his notice of appeal, Davis raises two issues. First, he asserts that the trial 

court committed charge error by submitting Sundance’s negligence and proportionate 

liability to the jury because these issues were not raised by Harris’s pleadings and were 

not tried by consent. Second, Davis contends that the trial court erred by requiring 

the jury’s present-value award for future medical expenses to be paid in periodic 

installments. 

Because it provides necessary context for our evaluation of Harris’s first issue 

and because it would result in a rendition of judgment,10 we begin our analysis with 

Harris’s second issue.11 See Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 201

(Tex. 2003) (op. on reh’g); see also Tex. R. App. P. 43.3.

A. The Evidence is Sufficient to Support the Jury’s Negligence Finding

In its second issue, Harris asserts that the evidence is legally insufficient12 to 

support the jury’s negligence finding against Harris. Specifically, Harris contends that 

10Generally, if we reverse a trial court’s judgment on legal-insufficiency 

grounds, rendition is the appropriate remedy. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 

176, 176 (Tex. 1986); see Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 270 (Tex. 

2002) (rendering judgment against the plaintiff in a negligence case when there was 

legally insufficient evidence of proximate cause). 

11As noted above, because our disposition of Harris’s first two issues dictates 

that we reverse the trial court’s judgment and remand this cause for further 

proceedings, we will not address the parties’ remaining issues. See Tex. R. App. P. 

47.1. 

12In its briefing supporting its second issue, Harris contends that “there was no 

evidence or insufficient evidence” to support the jury’s negligence finding against 

Harris. This phrasing makes it unclear whether Harris’s sufficiency challenge is 
11

there is legally insufficient evidence (1) to impute Sundance’s or Dr. Leitch’s 

negligence to Harris, (2) to impose a common-law duty on Harris to draft and enforce 

policies applicable to its contracted anesthesia service providers’ practice of medicine, 

or (3) to establish a causal relationship between Harris’s alleged negligence and 

Angela’s injuries. For the reasons set forth below, we agree with the first of these 

contentions, but we reject the others.13

1. Standard of Review

We may sustain a legal-sufficiency challenge—that is, a no-evidence 

challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of 

strictly based on legal insufficiency or based on both legal and factual insufficiency. 

Because Harris raises arguments relating only to legal insufficiency and requests only 

that we reverse and render judgment in its favor if we sustain its second issue, we 

construe its second issue as strictly raising a legal-sufficiency challenge. See Dunn v. 

Mengtai Petroleum Mach. Co., Ltd., No. 02-17-00425-CV, 2019 WL 3024479, at *1 n.1 

(Tex. App.—Fort Worth July 11, 2019, no pet.) (mem. op.). Further, given our 

disposition of Harris’s first issue, see infra Section III.B., a factual-sufficiency analysis 

would be a purely academic exercise. 

13Davis claims that Harris failed to preserve its evidentiary-sufficiency 

complaint. See Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex. 1988) 

(instructing that there are “five ways to preserve a ‘no evidence’ point of error: (1) a 

motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; 

(3) an objection to the submission of the issue to the jury; (4) a motion to disregard 

the jury’s answer to a vital fact issue; or, (5) a motion for new trial”). But because we 

conclude that there is legally sufficient evidence to support Davis’s direct-negligence 

claim and thus overrule Harris’s second issue on the merits, we need not address this 

preservation question. See In re A.A., 670 S.W.3d 520, 525 n.13 (Tex. 2023) (“Because 

we reject [appellant’s] complaint on its merits, we need not decide if it is really a 

procedural one that she was required to preserve.”); cf. Goodyear Tire & Rubber Co. v. 

Rogers, 538 S.W.3d 637, 644–45 (Tex. App.—Dallas 2017, pet. denied) (overruling 

appellant’s legal-insufficiency argument on the merits even though it appeared that 

appellant had failed to preserve the issue). 
12

law or of evidence bar the court from giving weight to the only evidence offered to 

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere 

scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Gunn 

v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining whether legally sufficient 

evidence supports the challenged finding, we must consider evidence favorable to the 

finding if a reasonable factfinder could, and we must disregard contrary evidence 

unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). 

We indulge “every reasonable inference deducible from the evidence” in support of 

the challenged finding. Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 

S.W.3d 447, 456 (Tex. 2017)). 

2. Applicable Law Regarding Davis’s Liability Theories

In the present case, Davis asserted both direct- and vicarious-liability theories 

against Harris. Davis alleged that Harris had breached its direct duty to use 

reasonable care (1) in formulating the policies and procedures that govern its medical 

staff and nonphysician personnel and (2) in exercising control over its anesthesia 

department, which was composed entirely of independent contractors.

14 See Denton 

14This second purported direct-liability theory is a negligent-control claim, 

commonly referred to as a “Redinger claim,” whereby an employer may be held liable 

for the negligence of an independent contractor if the employer retained control over 

the contractor’s work and failed to exercise reasonable care in exerting this control. 

See Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (holding general contractor 

liable for negligence in supervising subcontractor’s employee where general contractor 
13

Reg’l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.—Fort Worth 1997, pet. 

denied) (recognizing that a hospital owes a patient a direct duty “to use reasonable 

care in formulating the policies and procedures that govern its medical staff and 

nonphysician personnel” (citing Air Shields, Inc. v. Spears, 590 S.W.2d 574, 576–81 

(Tex. App.—Waco 1979, writ ref’d n.r.e.))); see also Owens v. Litton, 822 S.W.2d 794, 

796–97 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (op. on reh’g) 

retained right to direct order in which work was done and to forbid the work from

being done in a dangerous manner, adopting Restatement (Second) of Torts § 414 

(1965)); see also O’Connor’s Texas Causes of Action ch. 38-C, § 4.1(2) (2022). Davis 

classified his Redinger claim as a direct-liability theory, but as we have previously 

recognized, it is unclear whether such claims are direct-liability or vicarious-liability 

claims under Texas law. Bell v. VPSI, Inc., 205 S.W.3d 706, 719 (Tex. App.—Fort 

Worth 2006, no pet.). Although the Restatement treats negligent-control liability as 

direct negligence, the Texas Supreme Court has characterized an employer’s liability 

for a Redinger claim as vicarious. Id.; see Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 

(Tex. 2006) (discussing Redinger and explaining that “an employer can be held vicariously

liable for the actions of an independent contractor if the employer retains some 

control over the manner in which the contractor performs the work that causes the 

damage” (emphasis added)); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 

(Tex. 1997) (characterizing Redinger as holding general contractor liable for 

independent contractor’s negligence). Following the supreme court’s lead, many of 

our sister courts have also described an employer’s liability for a Redinger claim as 

vicarious. See, e.g., Martinez v. Boone, 624 S.W.3d 241, 249–50, 253–54 (Tex. App.—

El Paso 2021), rev’d on other grounds sub nom. Cameron Int’l Airport v. Martinez, 662 S.W.3d 

373 (Tex. 2022); Bustamante v. Gonzalez, No. 04-09-00481-CV, 2010 WL 2298841, at *2 

(Tex. App.—San Antonio June 9, 2010, pets. denied) (mem. op.); Weiss v. Tucker, Nos. 

03-08-00088-CV, 03-08-00089-CV, 2009 WL 790310, at *3 (Tex. App.—Austin Mar. 

27, 2009, pet. denied) (mem. op.); Malone v. Ellis Timber, Inc., 990 S.W.2d 933, 935–36 

(Tex. App.—Beaumont 1999, no pet.). Because Davis characterized his Redinger claim 

as a direct-liability theory and because the parties did not raise or brief this issue, we 

will assume, without deciding, that Davis’s Redinger claim is a direct-negligence claim. 

See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex. 2017)

(assuming, without deciding, that Texas recognizes a cause of action for aiding and 

abetting because the parties had not raised or briefed the question).
14

(discussing negligent-control (i.e., Redinger) claim in the medical-malpractice context). 

Davis also alleged that Harris was vicariously liable under a nonemployee-agency 

theory for Dr. Leitch’s and Sundance’s failure to formulate and enforce policies 

designed to minimize medication errors in the anesthesia department. See St. Joseph 

Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex. 2002) (discussing nonemployee-agency claim 

in medical-malpractice case).

a. Direct Liability

“Under Texas law, a hospital may be liable independently of the negligence of 

its physicians or employees.” LaCroix, 947 S.W.2d at 950. Such direct liability arises 

from a hospital’s “negligent performance of a duty owed directly to the patient.” Id.; 

see also Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 949 (Tex. 1998) 

(recognizing that an injured patient “may retain a direct cause of action against [a]

hospital if the hospital was negligent in the performance of a duty owed directly to the 

patient”). As one of our sister courts has explained,

[a] hospital is not a mere hoste[l]ry providing room and board and a 

place for physicians to practice their craft, but owes independent duties 

of care to its patients. A hospital owes duties directly to its patients to 

provide appropriate and usable medical equipment, to keep its premises 

in a reasonably safe condition, to not negligently allow termination of 

medical care, to use reasonable care in formulating the policies and 

procedures that govern its medical staff and nonphysician personnel, to 

exercise reasonable care in the selection of its medical staff, and to 

periodically monitor and review the medical staff’s competence.

Tenet Health Ltd. v. Zamora, 13 S.W.3d 464, 471 (Tex. App.—Corpus Christi–Edinburg

2000, pet. dism’d w.o.j.) (citations omitted).
15

To prevail on a direct medical negligence cause of action against a hospital, a 

plaintiff must prove four elements: (1) the hospital’s duty to act according to an 

applicable standard of care; (2) a breach of the applicable standard of care; (3) an 

injury; and (4) a causal connection between the breach of care and the injury. 

LaCroix, 947 S.W.2d at 950. But before a factfinder can consider whether a hospital’s 

deviation from the standard of care is negligent, the plaintiff must first establish what 

the standard of care is. Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 409 (Tex. 

App.—Fort Worth 2003, no pet.). 

The test used to determine a hospital’s standard of care is what a hospital of 

ordinary prudence would have done under the same or similar circumstances. Id.

(citing LaCroix, 947 S.W.2d at 950). The relevant circumstances include, but are not 

limited to, the expertise of and means available to the hospital and the state of medical 

knowledge. Id. (citing Hood v. Phillips, 554 S.W.2d 160, 165 (Tex. 1977)). Expert 

testimony is generally required to establish the governing standard of care and to 

determine whether the standard has been breached. Id. (first citing Hood, 554 S.W.2d

at 165–66; and then citing LaCroix, 947 S.W.2d at 950). 

 b. Vicarious Liability

In addition to being directly responsible for its own negligence, a hospital may, 

under certain circumstances, be vicariously liable for the negligence of its agents or 

employees. See Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 585 (Tex. 1977) 

(“[H]ospitals are subject to the principles of agency law which apply to others.”). 
16

Under the theory of respondeat superior, an employer—including a hospital—may be 

vicariously liable for the negligence of its agent or employee even though the 

employer itself was not negligent. Farlow v. Harris Methodist Fort Worth Hosp., 

284 S.W.3d 903, 910 (Tex. App.—Fort Worth 2009, pet. denied) (first citing Wolff, 

94 S.W.3d at 541–42; then citing Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947; and then 

citing Bell, 205 S.W.3d at 713). To establish liability based on respondeat superior, a 

plaintiff must prove that: (1) an agency relationship (e.g., an employer–employee 

relationship) existed between the alleged tortfeasor and the employer; (2) the alleged 

tortfeasor committed a tort; and (3) the tort was committed in the course and scope 

of the tortfeasor’s (i.e., the employee’s) authority. Knight v. City Streets, L.L.C., 167 

S.W.3d 580, 582–83 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing Baptist 

Mem’l Hosp. Sys., 969 S.W.2d at 947).

But a person or entity that hires an independent contractor is generally not 

vicariously liable for the contractor’s torts or negligence. Farlow, 284 S.W.3d at 910 

(first citing Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947; then citing Enserch Corp. v. 

Parker, 794 S.W.2d 2, 6 (Tex. 1990); and then citing Redinger, 689 S.W.2d at 418). “For 

example, a hospital is ordinarily not liable for the negligence of a physician who is an 

independent contractor.” Id. (first citing Baptist Mem’l Hosp. Sys., 969 S.W.2d at 948;

and then citing Espalin v. Children’s Med. Ctr. of Dall., 27 S.W.3d 675, 684 (Tex. App.—

Dallas 2000, no pet.)). 
17

To determine whether a principal–agent relationship giving rise to a respondeat 

superior claim exists, courts consider “the agreement between the parties, their words, 

and their conduct.” Royal Mortg. Corp. v. Montague, 41 S.W.3d 721, 733 (Tex. App.—

Fort Worth 2001, no pet.). A contract expressly providing that a person is an 

independent contractor “is determinative of the relationship absent evidence that the 

contract is a mere sham or subterfuge” designed to conceal the parties’ true legal 

status. Farlow, 284 S.W.3d at 911 (first citing Newspapers, Inc. v. Love, 380 S.W.2d 582, 

588–90, 592 (Tex. 1964); then citing Bell, 205 S.W.3d at 713–14; and then citing 

Weidner v. Sanchez, 14 S.W.3d 353, 373 (Tex. App.—Houston [14th Dist.] 2000, no 

pet.)). 

The right of control is the “supreme test” for determining whether a principal–

agent relationship exists. Id. (first citing Golden Spread Council, Inc. No. 562 of Boy Scouts 

of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996); and then citing Omega Contracting, 

Inc. v. Torres, 191 S.W.3d 828, 847 (Tex. App.—Fort Worth 2006, no pet.) (op. on 

reh’g)); see Wolff, 94 S.W.3d at 537 (noting that the key elements of a nonemployeeagency claim are “(1) benefit to the [principal] and (2) right of control”). Thus, even 

though the parties’ agreement purports to create an independent-contractor 

relationship, the relationship may nevertheless give rise to a respondeat superior claim 

if other contract language or extrinsic evidence shows such a right of control that the 

relationship is actually that of employer–employee. Farlow, 284 S.W.3d at 911. 

However, for a right of control to be proven by extrinsic evidence, it “must be so 
18

persistent and the acquiescence therein so pronounced as to raise an inference that at 

the time of the act or omission giving rise to liability, the parties by implied consent 

and acquiescence had agreed that the principal might have the right to control the 

details of the work.” Id. (quoting Newspapers, Inc., 380 S.W.2d at 592). 

In determining whether a party’s right of control is sufficient to trigger 

vicarious liability, courts consider a number of factors, including: (1) the independent 

nature of the person’s business; (2) the person’s obligation to furnish necessary tools, 

supplies, and material to perform the job; (3) the right to control progress of the 

work, except as to final results; (4) the time for which the person is employed; and 

(5) the method of payment, whether by time or by the job. Id. (first citing Tex. A&M 

Univ. v. Bishop, 156 S.W.3d 580, 584–85 (Tex. 2005); and then citing Limestone Prods. 

Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002)). “To trigger vicarious 

liability, the right to control must extend to the specific activity from which the injury 

arose.” Id. at 911–12 (first citing Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex.

1998); then citing Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993); and then 

citing Omega Contracting, 191 S.W.3d at 847). 

Although the right to control is ordinarily a question of fact, the determination 

as to whether a contract gives a right to control is generally a question of law. Id. at 

912 (first citing Omega Contracting, 191 S.W.3d at 847; and then citing EPGT Tex. 

Pipeline, L.P. v. Harris Cnty. Flood Control Dist., 176 S.W.3d 330, 336 (Tex. App.—

Houston [1st Dist.] 2004, pet. dism’d)). Further, “if the controlling facts are 
19

undisputed, whether the relationship that exists is that of an employee or of an 

independent contractor is a question of law.” Id. (first citing Dow Chem. Co. v. Bright, 

89 S.W.3d 602, 606 (Tex. 2002); and then citing EPGT Tex. Pipeline, 176 S.W.3d at 

336). 

3. The Evidence Supporting Davis’s Vicarious-Liability Theory is 

Legally Insufficient

As noted above, Davis asserted both direct- and vicarious-liability claims 

against Harris. In support of his vicarious-liability (or respondeat superior) claim, 

Davis alleged that Dr. Leitch and Sundance were Harris’s nonemployee agents and 

that Harris was therefore vicariously liable for their failure to formulate and enforce 

policies designed to minimize medication errors in the anesthesia department. 

However, we agree with Harris that there is legally insufficient evidence to support 

the existence of a principal–agent relationship. 

The Medical Director and Coverage Services Agreement between Harris and 

Sundance clearly states that Sundance and its CRNAs and anesthesiologists—

including Dr. Leitch—are independent contractors:

In the performance of the professional medical services and 

responsibilities assumed by [Sundance] under this Agreement, with 

regard to [Harris], it is mutually understood and agreed that [Sundance] and all 

[anesthesiologists and CRNAs] made available by [Sundance] are, and at all times 

are, independent practitioners. [Sundance] and [its anesthesiologists and 

CRNAs] shall perform Coverage Services free of any direction or control by 

[Harris], but in a manner consistent with currently approved methods 

and practices in the medical profession and in compliance with the 

standards of the Medical Staff and/or as otherwise provided in this 

Agreement. Nothing in this Agreement shall be construed as giving [Harris] the 
20

degree of control necessary to create an employer–employee relationship between 

[Harris] and [Sundance], and neither [Sundance] nor any [anesthesiologist or 

CRNA employed by Sundance] is a partner or agent of [Harris]. [Emphases 

added.] 

Further, Sundance and Harris expressly acknowledged in the agreement that

[Sundance] and Anesthesiologists shall remain entirely independent of [Harris] 

as to the diagnosis and treatment of patients and with regard to all other 

medical, professional[,] and ethical affairs of [Sundance] and 

Anesthesiologists. Each [anesthesiologist and CRNA] accepts full 

responsibility for the professional services he/she renders to patients. 

[Emphasis added.] 

Because the agreement explicitly characterized Sundance and Dr. Leitch as 

independent contractors, it was incumbent on Davis to present evidence—either 

intrinsic (i.e., other contract language) or extrinsic—showing that Harris nevertheless 

had a right of control extensive enough to create a principal–agent relationship 

between the parties. Id. at 911. But Davis presented no such evidence.

Indeed, by explicitly alleging in his petition that Harris had failed to exercise 

control over Sundance and Dr. Leitch, Davis, in essence, conceded that there was no 

extrinsic evidence showing that Harris had actually controlled Sundance’s or 

Dr. Leitch’s work, much less that it had done so persistently enough to raise an 

inference that Sundance and Dr. Leitch had impliedly consented to allow Harris to 

control the details of their work. See id.; cf. TX Far W., Ltd. v. Tex. Invs. Mgmt., Inc., 127 

S.W.3d 295, 307 (Tex. App.—Austin 2004, no pet.) (“It is well established that 

‘assertions of fact . . . in the live pleadings of a party are regarded as formal judicial 

admissions.’” (quoting Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 
21

(Tex. 2001))). Thus, any evidence of control would have had to come from the 

contract itself. 

But the parties’ agreement contains no language showing that Harris had 

retained a right of control extensive enough to give rise to a respondeat superior 

claim. Farlow, 284 S.W.3d at 911. The language that comes the closest is that 

requiring Sundance and each anesthesiologist and CRNA providing coverage services 

to “comply with [Harris’s] policies and procedures in all material respects” and to 

“perform Coverage Services in accordance with [applicable] ethical and professional 

standards . . . and all applicable statutes, regulations, rules, . . . and directives of 

federal, state, and other governmental regulatory bodies having jurisdiction over 

[Harris].” However, contract language requiring physicians to comply with hospital 

policies and procedures and applicable laws, regulations, and safety requirements does 

not demonstrate a right of control over how they perform their job or affect their 

status as independent contractors. Blackburn v. Columbia Med. Ctr. of Arlington 

Subsidiary, 58 S.W.3d 263, 270 (Tex. App.—Fort Worth 2001, pet. denied) (“The fact 

that a physician has staff privileges and agrees to abide by the hospital’s policies and 

procedures while utilizing its equipment and facilities does not affect the physician’s 

status as an independent contractor.” (citing Drennan v. Cmty. Health Inv. Corp., 905 

S.W.2d 811, 819 (Tex. App.—Amarillo 1995, writ denied) (op. on reh’g))); see Bell, 205

S.W.3d at 720 (holding that contract language “requiring [an] independent contractor 

to comply with [an] employer’s standard safety practices and applicable laws” was not 
22

sufficient to demonstrate a retained right of control); see also Hoechst-Celanese Corp. v. 

Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (holding that defendant’s insistence that 

independent contractor observe and comply with federal laws, safety guidelines, and 

standard safety precautions did not impose unqualified duty of care to ensure

contractor’s employees did nothing unsafe). 

To support his vicarious-liability theory, Davis highlighted the fact that Harris’s 

and Sundance’s agreement designated Dr. Leitch as the Medical Director of Harris’s 

anesthesia department. But the agreement bifurcated the Medical Director’s 

responsibilities into “Administrative” and “Non-Administrative” components and 

made clear that only the Administrative duties were to be “performed in the normal 

course of [Harris’s] business.” These Administrative responsibilities included 

“[a]ssist[ing] with planning, coordinating, and overseeing” the department’s 

“administrative functions” and “[c]ollaborat[ing] with the Department Director” 

regarding “scope of services, staffing levels, facility space, budget, financial 

performance and program feasibility, technical and non-director employee job 

descriptions and qualifications, and performance evaluation standards for such 

employees.” Thus, the agreement clearly delineated Dr. Leitch’s Administrative 

duties, none of which pertained to the implementation or enforcement of policies and 

procedures in general or medication-handling policies in particular.15 The absence of 

15At trial, Dr. Leitch agreed that “formulating policies and procedures [was] 

part of [his] [A]dministrative duties as . . . [M]edical [D]irector,” but as shown above, 
23

delineated duties requiring Dr. Leitch in his capacity as Medical Director to oversee 

Sundance’s clinical practice is consistent with the agreement’s other provisions 

making clear that Sundance and its CRNAs and anesthesiologists are free of Harris’s 

control. Therefore, far from showing that the agreement between Harris and 

Sundance is a mere sham or subterfuge, see Farlow, 284 S.W.3d at 911, the provisions 

detailing Dr. Leitch’s responsibilities as Medical Director actually reinforce the 

agreement’s characterization of Sundance and its furnished care providers as 

independent contractors. 

In sum, because Harris’s and Sundance’s contract expressly provided that 

Sundance was an independent contractor and because the record contains no 

evidence demonstrating that “the contract [was] a mere sham or subterfuge designed 

to conceal the true legal status of the parties,” Davis’s vicarious-liability theory fails as 

a matter of law.16 See id.

this was not among the Administrative duties explicitly enumerated in the contract 

between Harris and Sundance. Rather, Dr. Leitch’s responsibility to “establish and 

revise departmental clinical policies, procedures, and protocols” “[i]n collaboration 

with the Department Director” is classified as Non-Administrative, meaning that 

(1) this responsibility was not performed in the normal course of Harris’s business

and (2) Dr. Leitch was not accountable to Harris’s president in fulfilling it. 

16Davis’s Redinger claim—which, as noted above, he characterized as a directnegligence claim—fails for the same reasons. See Bell, 205 S.W.3d at 718–19

(explaining that in order for Redinger liability to attach, an employer must retain a right 

of control over the manner in which the independent contractor performs its work). 

In any event, because a hospital may require medical personnel to comply with its 

policies and procedures while using its equipment and facilities without jeopardizing 

their status as independent contractors, see id. at 720; Blackburn, 58 S.W.3d at 270, 
24

4. The Evidence Supporting Davis’s Direct-Negligence Claim is Legally 

Sufficient

Harris also contends that there is legally insufficient evidence to support 

Davis’s direct-negligence claim. Specifically, Harris argues that (1) it had no commonlaw duty to formulate and enforce policies concerning its independent contractors’ 

clinical activities and (2) there was insufficient evidence showing that Harris’s 

negligence caused Angela’s injuries. We disagree on both counts.

a. Duty

As noted above, a hospital may be liable—irrespective of the negligence of its 

physicians or employees—if it breaches a duty owed directly to a patient. LaCroix, 

947 S.W.2d at 950. One such direct duty is the duty to use reasonable care in 

formulating policies and procedures that govern the hospital’s medical staff and 

nonphysician personnel. Id. (citing Air Shields, 590 S.W.2d at 576–81); accord Mills v. 

Angel, 995 S.W.2d 262, 267–68 (Tex. App.—Texarkana 1999, no pet.) (op. on reh’g); 

see also Chesser v. LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d 613, 629 (Tex. App.—Fort 

Worth 2011, pet. denied); Reed, 117 S.W.3d at 409. 

Despite acknowledging its direct policy-making duty numerous times in the 

trial court, Harris argues on appeal that this duty does not extend to “creat[ing] 

policies governing the details of contracted independent medical practitioners’ clinical 

activities.” This argument lacks merit. 

Davis’s Redinger claim was essentially swallowed by his ordinary direct-negligence 

claim. 
25

First, contrary to what Harris contends, the policy at issue here—a mandatory 

medication-handling policy for all medical staff and nonphysician personnel, including 

those in the anesthesia department—does not concern the clinical practice of 

medicine. Such a policy does not bear upon practitioners’ medical decisions regarding 

diagnosing or treating patients. See Tex. Occ. Code Ann. § 151.002(a)(13) (defining 

“practicing medicine” as “the diagnosis, treatment, or offer to treat a mental or 

physical disease or disorder or a physical deformity or injury” by a physician or 

surgeon). Rather, it merely relates to Harris’s responsibility to have adequate systems 

and processes in place to ensure its patients’ safety. See Tenet Health, 13 S.W.3d at 470; 

see also Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015) (recognizing 

that a health care provider has “duties to provide for patient safety”).

But even if we were to assume that the medication-handling policy did concern 

the clinical practice of medicine, the relevant caselaw makes it clear that a hospital’s 

policy-making and enforcement duty extends to clinical activities. See Chesser, 356 

S.W.3d at 634 (concluding that evidence was sufficient to support finding that 

hospital management company was negligent for, inter alia, failing to formulate 

“policies and procedures governing care of patients post-PEG tube insertion” and 

failing to enforce “policies requiring a nursing care plan for every patient”); LaCroix, 

947 S.W.2d at 949–56 (addressing policies involving preanesthesia evaluation and 

supervision of anesthesia care); Air Shields, 590 S.W.2d at 581–82 (concluding that 

evidence was sufficient to support finding that hospital was negligent in its policies 
26

and procedures regarding the administration of supplemental oxygen to premature 

infants). 

Further, the care providers’ status as independent contractors is irrelevant to 

Davis’s direct-negligence claim. It is not uncommon for hospitals to require 

physicians to comply with their policies and procedures while utilizing their 

equipment and facilities, and we have held that a hospital may impose such a 

requirement without jeopardizing care providers’ status as independent contractors. 

See Bell, 205 S.W.3d at 720; Blackburn, 58 S.W.3d at 270. Here, as noted above, 

Harris’s agreement with Sundance expressly required Sundance and all of its 

anesthesiologists and CRNAs providing coverage services to “comply with [Harris’s] 

policies and procedures in all material respects.” Indeed, Dr. Leitch acknowledged 

that Harris “ha[d] the ability and the authority to require [him] to follow its 

procedures,” and both Goforth and Tucker testified that if Harris had implemented a 

medication-handling policy that applied to the anesthesia department, they would 

have abided by it. 

In LaCroix, we recognized—tacitly, if not explicitly—that a hospital’s direct 

policy-making duty included an obligation to create and enforce policies governing the 

details of independently contracted anesthesiologists’ and CRNAs’ clinical activities, 

and Harris’s attempts to distinguish this case are unavailing. The LaCroix plaintiffs 

asserted a medical-malpractice claim against a hospital arising from an anesthesia error 

in the labor-and-delivery department that had caused hypoxia and irreversible brain 
27

damage to the patient. 947 S.W.2d at 944–46. The hospital had contracted with an 

anesthesia group to serve as its exclusive anesthesia provider for the labor-anddelivery department. Id. at 943. Even though the hospital had a written anesthesiacare policy providing that a CRNA could only provide care under a physician’s “direct 

and personal supervision,” its contract with the anesthesia group did not require 

anesthesiologists to supervise the CRNAs in person and instead only required them to 

be on-call and available to respond within thirty minutes. Id. Recognizing that the 

hospital owed a direct duty to use reasonable care in formulating and enforcing 

policies and procedures governing its medical staff, we concluded that the evidence 

was sufficient to support the jury’s finding that the hospital’s breach of its duty to 

enforce its policy requiring an anesthesiologist to provide or supervise the patient’s

anesthesia care had proximately caused her brain injury. Id. at 950, 956.

Misconstruing LaCroix, Harris argues that it is distinguishable because 

(1) unlike Harris, the hospital had—by virtue of its enaction of a policy requiring 

CRNAs to be personally supervised by an anesthesiologist—assumed a duty to 

enforce service providers’ compliance with that policy and (2) Davis’s direct-liability 

claim differs from the one asserted by the LaCroix plaintiffs because it is, in essence, a 

negligent-supervision claim. These arguments are unpersuasive.

Harris’s first argument confuses the origin of a hospital’s general duty to 

formulate and enforce policies with the specific manner of breach. Contrary to what 

Harris contends, the LaCroix hospital did not “assume” a duty by enacting its 
28

mandatory-supervision policy; rather, its duty to use reasonable care in enforcing its 

policies arose from the common law. See id. at 950; see also Chesser, 356 S.W.3d at 629; 

Reed, 117 S.W.3d at 409; Mills, 995 S.W.2d at 267–68. Although the specific breach 

alleged in LaCroix (i.e., that the hospital had failed to enforce its mandatorysupervision policy) differs from the breach alleged in the present case (i.e., that Harris 

failed to formulate and enforce a medication-handling policy that applied to its 

anesthesia department), this is a distinction without a difference as far as the scope of 

Harris’s policy-making duty is concerned. 

Harris’s second argument is, at best, confusing. Seizing upon our statement in 

LaCroix that the plaintiffs claimed “that the hospital had and breached a direct duty to 

[the patient] . . . [,] not that the hospital [had] negligently supervised [the] 

anesthesiologists and CRNAs,” 947 S.W.2d at 949 n.6, Harris attempts to distinguish 

Davis’s claim by portraying it as a negligent-supervision claim. The gist of Harris’s 

argument appears to be that because Davis asserts that Harris had a duty not only to 

create a medication-handling policy but also to enforce that policy, his directnegligence claim is—in substance—a negligent-supervision claim. But Harris’s 

argument ignores the fact that the LaCroix plaintiffs’ claim was also premised upon 

the hospital’s failure to enforce a policy, not merely to formulate one. Id. at 946. 

Thus, even if we were to accept Harris’s dubious assertion concerning the nature of 

Davis’s claim (and we do not), this would not be a point of distinction between 

LaCroix and the present case.
29

In sum, Harris had a duty to use reasonable care in formulating policies and 

procedures governing its medical staff and nonphysician personnel. See id. at 950; see 

also Chesser, 356 S.W.3d at 629; Reed, 117 S.W.3d at 409; Mills, 995 S.W.2d at 267–68. 

The caselaw makes clear that a hospital may require independent contractors to 

comply with its policies while using its facilities and equipment. See Bell, 205 S.W.3d 

at 720; Blackburn, 58 S.W.3d at 270; see also LaCroix, 947 S.W.2d at 943, 956. Further,

even if—as Harris maintains—the medication-handling policy at issue in this case 

concerns the clinical practice of medicine, this does not preclude Davis’s directnegligence claim under the facts of this case. See Chesser, 356 S.W.3d at 634; LaCroix, 

947 S.W.2d at 949–56; Air Shields, 590 S.W.2d at 581–82. Accordingly, we reject 

Harris’s argument that it had no duty to formulate or enforce a medication-handling 

policy that applied to its independently contracted anesthesiologists and CRNAs. 

b. Causation

Harris also contends that there is legally insufficient evidence to show a causal 

relationship between Harris’s alleged negligence and Angela’s injuries. The crux of 

Harris’s causation argument is that because there were two equally likely errors that 

could have occurred and because the implementation of a double-verification 

medication-handling policy would have prevented only one of them, Davis cannot 

prove by a preponderance of the evidence that Harris’s failure to implement such a 
30

policy proximately caused Angela’s injuries.17 In other words, Harris asserts that 

because (1) a policy requiring all medication labels to be double verified would have 

only prevented Tucker from mislabeling the syringes but would not have prevented 

Goforth from misreading the labels and (2) it is impossible to know for sure which 

error occurred—meaning that the probability of either error’s being the cause of 

Angela’s injuries is only fifty percent—Davis cannot show by a preponderance of the 

evidence that Harris’s negligence caused Angela’s injuries. But when viewed in the 

light most favorable to the jury’s negligence finding, the record contains legally 

sufficient evidence of causation. See Wise Elec. Coop., Inc. v. Am. Hat Co., 476 S.W.3d 

671, 687 (Tex. App.—Fort Worth 2015, no pet.).

Harris’s claim that the two potential errors were equally likely is based on 

isolated excerpts from the causation experts’ testimonies. But Harris ignores the 

substantial amount of other evidence indicating that it was more likely that Tucker 

mislabeled the syringes than that Goforth administered the wrong, but properly 

labeled, medication. For example, Harris’s own expert Dr. Dorman agreed that if 

17Harris also contends that the jury’s findings that Goforth, Tucker, and 

Dr. Leitch were either not negligent or not a proximate cause of Angela’s injuries

shows that there was legally insufficient evidence demonstrating that Harris’s failure 

to implement a medication-handling policy caused Angela’s injuries. However, the 

jury’s findings that the individual care providers were not negligent is immaterial to 

the issue of Harris’s direct liability. See LaCroix, 947 S.W.2d at 949. Further, when 

viewed in conjunction with the jury’s findings that Harris’s and Sundance’s negligence 

proximately caused Angela’s injuries, the jury’s declination to find the individual 

medical providers culpable does not necessarily mean that they thought that the 

causation evidence was insufficient; rather, it simply shows that they believed that 

ultimate responsibility for the incident rests with Harris and Sundance.
31

Goforth erred by misreading the labels, she did so at two different times—once when 

administering what she thought was bupivacaine and again when administering what 

she believed to be tranexamic acid—and concluded that it was therefore more likely 

that Tucker had made the error when filling the syringes. Davis’s expert Dr. Kaye 

testified that because medication errors are very rare, it is more likely that Tucker 

made a single swap error when preparing the syringes than that Goforth made two 

errors when reading the labels and administering the medications. Indeed, another of 

Davis’s experts, Dr. Abookire, and Harris’s statistics expert, Dr. Shavelle, confirmed 

that if the odds of one medication error occurring are one in a thousand, the odds of 

two such errors occurring are one in a million.18 In addition, the jury heard Harris’s 

interrogatory response in which it acknowledged that although it was “not absolutely 

certain” what had caused Angela’s injuries, it “believed that the syringe for 

bupivacaine [had been] inadvertently switched by . . . Tucker with the syringe for 

tranexamic acid when the medications were removed from their vials.” Based on this 

record, there is some evidence from which the jury could have reasonably concluded 

that it was more likely that Tucker had mislabeled the syringes than that Goforth had 

twice misread the labels and administered the wrong, but correctly labeled, 

medication. 

18Dr. Shavelle clarified that for these statistical odds to apply, the two errors 

would have to be independent, unrelated events. He surmised that two errors made 

by the same nurse may be related but acknowledged that such a causation question 

was outside his area of expertise. 
32

Further, there is some evidence indicating that even if Goforth misread the 

labels,19 this error could have been prevented by Harris’s implementation of a 

medication-handling policy. If Harris had implemented a double-verification 

medication-handling policy, Goforth would have been prohibited from using the 

syringes that had been prefilled by Tucker without being doubly verified and instead 

would have been required to draw and administer the medication herself without a 

break in the process. When a medication is drawn and administered in this manner, 

there is virtually no possibility of a drug-swap error.20

Viewed in the light most favorable to the verdict, the record contains more 

than a scintilla of evidence to support a finding that Harris’s failure to implement and 

enforce a double-verification medication-handling policy proximately caused Angela’s 

injuries. See EAN Holdings, LLC v. Arce, 636 S.W.3d 290, 294 (Tex. App.—Fort 

Worth 2021, pet. denied); Dunn, 2019 WL 3024479, at *3. Thus, the evidence of 

causation is legally sufficient. See Gunn, 554 S.W.3d at 658.

19In its briefing, Harris asserted that Davis had amended his petition to 

disregard the possibility that Goforth had misread the labels. But Davis’s live 

pleading appears to allow for both possibilities as it simply alleges that 

“Goforth . . . injected a medication she thought was bupivacaine into . . . [Angela’s] 

spinal column, but it was actually tranexamic acid” and that Harris had a duty to 

formulate and enforce a medication-handling policy designed “to avoid drug-swap 

and wrong medication errors.” 

20Indeed, Dr. Leitch and Harris’s Chief Medical Officer Mark Montgomery 

testified that after the events giving rise to this case, a new policy was implemented 

prohibiting CRNAs from drawing up medications in advance and requiring them 

instead to draw each medication “out of the vial directly onto the tray” at the time it is 

administered so that there is no “break in the chain.” 
33

5. Disposition of Harris’s Second Issue

Having determined that the evidence is legally sufficient to support Davis’s 

direct-liability claim, we overrule Harris’s second issue. 

B. The Trial Court Abused Its Discretion by Admitting the CMS Conditions 

and Testimony Concerning These Regulations

In its first issue, Harris asserts that the trial court abused its discretion by 

admitting the CMS Conditions and testimony concerning these regulations. 

Specifically, Harris contends that by admitting these federal regulations as evidence of 

the applicable standard of care and allowing Davis’s standard-of-care expert to rely on 

them as a basis for her opinions, the trial court essentially instructed the jury that 

under federal law, Harris was legally responsible for Angela’s injuries regardless of 

whose error caused them—even if the negligent person (or entity) was an 

independent contractor under Texas agency law. Thus, according to Harris, the CMS 

Conditions and the testimony concerning them were irrelevant and any probative 

value that this evidence might have had was substantially outweighed by the danger of 

unfair prejudice, confusing the issues, and misleading the jury. See Tex. R. Evid. 401–

03. For the reasons set forth below, we agree that the trial court abused its discretion 

by admitting this evidence. 

1. Standard of Review

We review a trial court’s ruling in admitting or excluding evidence under an 

abuse of discretion standard. Richmond Condos. v. Skipworth Com. Plumbing, Inc., 245 
34

S.W.3d 646, 664–65 (Tex. App.—Fort Worth 2008, pet. denied) (op. on reh’g) (citing 

Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000) (op. on reh’g)). A 

trial court abuses its discretion in admitting or excluding evidence if it acts without 

reference to any guiding rules and principles or if the act complained of is arbitrary

and unreasonable. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.

2002) (op. on reh’g); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985). 

To obtain reversal of a judgment based on the erroneous admission or 

exclusion of evidence, an appellant must show not only that the trial court’s ruling 

was in error but also that the error probably caused the rendition of an improper 

judgment. Tex. R. App. P. 44.1(a)(1); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 

(Tex. 2000); Ledbetter v. Mo. Pac. R.R. Co., 12 S.W.3d 139, 142 (Tex. App.—Tyler 1999, 

pet. denied). This standard does not require the complaining party to prove that but 

for the evidentiary ruling a different judgment would necessarily have resulted. Tex. 

Health Harris Methodist Hosp. Fort Worth v. Featherly, 648 S.W.3d 556, 577 (Tex. App.—

Fort Worth 2022, pets. denied) (citing JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 

836 (Tex. 2018)). Rather, if erroneously admitted or excluded evidence was crucial to 

a key issue, the error is likely harmful. Reliance Steel & Aluminum Co. v. Sevcik, 267 

S.W.3d 867, 873 (Tex. 2008). Determining whether a particular error is harmful 

depends on the particular case. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 

870 (Tex. 2009). In making this determination, we review the entire record. Id.
35

2. Admission of the CMS Conditions and Related Testimony

At trial, Davis offered—and the trial court admitted—Section 482.12(e) of the 

CMS Conditions into evidence. See 42 C.F.R. 482.12(e). Significantly, as shown 

below, Section 482.12(e) has nothing to do with the double-verification medicationhandling policy that Davis asserted Harris was required to implement under the 

applicable standard of care; rather, it solely concerns hospitals’ responsibility for 

services provided at their facilities—even those furnished by independent contractors. 

See id.

Section 482.12 provides that to be eligible to participate in Medicare or 

Medicaid, a hospital must have “an effective governing body that is legally responsible 

for the conduct of the hospital.” See generally id. § 482.12. Section 482.12(e), which 

addresses standards for contracted services, specifies that a hospital’s

governing body must be responsible for services furnished in the hospital 

whether or not they are furnished under contracts. The governing body must 

ensure that a contractor of services (including one for shared services and 

joint ventures) furnishes services that permit the hospital to comply with 

all applicable conditions of participation and standards for the 

contracted services.

(1) The governing body must ensure that the services performed 

under a contract are provided in a safe and effective manner.

(2) The hospital must maintain a list of all contracted services, 

including the scope and nature of the services provided.

Id. § 482.12(e) (emphases added). 
36

The trial court also admitted the State Operations Manual’s interpretive 

guidelines for Section 482.12(e). These guidelines state, in relevant part, that

[t]he governing body has the responsibility for assuring that hospital 

services are provided in compliance with the Medicare Conditions of 

participation and according to acceptable standards of practice, irrespective 

of whether the services are provided directly by hospital employees or indirectly by 

contract. [Emphasis added.]

In addition to introducing into evidence the regulations and interpretive 

guidelines themselves, Davis extensively questioned many witnesses about them. For 

example, Davis elicited the following testimony from Dr. Dorman,21 one of the 

standard-of-care experts:

Q. In order to participate in Medicare and Medicaid, the governing 

body of the hospital is required to be responsible for everything that 

contracted services does, correct?

A. Everything, yes.

. . . .

Q. Do you know what Medicare -- what’s required under 

Medicare and Medicaid as a condition of participation with regard to 

responsibility and oversight for contracted services?

A. As far as I can remember, they’re responsible to assure that 

the contracted service is compliant with Medicare conditions of 

participation.

Q. And isn’t it true that they’re -- they have the exact same 

responsibility for their contracted services as they do for their employed 

services?

A. Correct.

21Dr. Dorman was not physically present at trial; rather, his video deposition 

was played for the jury. 
37

Q. Do you agree that the standard for contracted services says, 

“The governing body must be responsible for services furnished in the 

hospital whether or not they are furnished under contracts[]?[”]

A. Correct.

Q. “The governing body must ensure that a contractor of 

services, including one for shared services and joint ventures, furnishes 

services that permit the hospital to comply with” -- “permit the hospital 

to comply with all applicable conditions of participation and standards 

for the contracted services[]?[”]

A. Yes.

Q. And it says, “The governing body must ensure that the 

services performed under a contract are provided in a safe and effective 

manner,” correct?

A. Correct.

Q. So, I mean, you agree with me that this hospital . . . cannot 

avoid responsibility in this case by simply saying, Oh, it was a contractor that screwed 

up.

That’s not -- that’s not a defense, is it?

A. Correct.

. . . .

Q. Does your analysis in this case take into account the fact 

that in Texas it is the hospital itself that is responsible for formulating 

the policies and procedures, particularly those that are required by The

Joint Commission for the hospital to comply with?

A. Yes. And with the caveat that that can be delegated to the 

contract service to do that.

Q. And did you know that in the state of Texas and under the 

law, that even though it’s delegated under federal law, in fact, the hospital’s 

governing body remains ultimately legally responsible?

A. Yes.
38

. . . .

Q. You know that Section 282.12, conditions of participation 

states that “There must be an effective governing body that is legally 

responsible for the conduct of the hospital.”

A. Okay.

Q. Okay. That’s all I’m trying to ask.

A. Yeah.

Q. Did you know that federal law requires a hospital’s governing 

body to ensure, quote, “The clear expectations for safety are established”

--

A. Yes.

Q. -- “to reduce medication errors[]?[”]

A. Yes.

. . . .

Q. But do you disagree that the governing body is legally responsible 

for the conduct of their delegees?

A. Well, that’s what the standard requires. [Emphases added.] 

In addition, Davis’s standard-of-care expert Dr. Abookire testified that under 

Section 482.12(e) and the interpretive guidelines, Harris was “100 percent” required to 

“assur[e] that hospital services [were being] provided in compliance with the Medicare 

conditions of participation and according to acceptable standards of practice,

irrespective of whether the services [were] provided directly by . . . hospital employees 

or indirectly by contract.” Dr. Abookire explained to the jury that under Section 

482.12(e), 
39

hospitals and their governing boards . . . are accountable for the care that goes on in 

their hospital, period, regardless of whether they’re providing that [care] 

directly through employees or whether they have a contracted service.

Even if they contract out the anesthesia service or the radiology 

service or whatever, they can contract out certain services that they don’t 

want to bring in-house and employ directly. But even when they do 

that, they are still accountable for the quality of care provided by that 

service.

And that is well-known to hospital leaders that they cannot, you 

know, shift the blame to the contracted service or blame the CRNAs. They are 

accountable. And that’s part of the leadership standard and structure that 

hospital leaders are well aware of and operate by. And then, again, 

backed up by multiple sources of regulatory standards such as [Section 

482.12(e)]. [Emphases added.] 

Dr. Abookire even went so far as to identify the CMS Conditions with the applicable 

standard of care, opining that “the standard of care for all hospitals[, or at least] one 

standard of care[,] is that they obey . . . the conditions of participation.” 

Davis also examined Dr. Montgomery regarding the CMS Conditions. After 

confirming that he was familiar with the regulations, Dr. Montgomery—predicated on 

the assumption that the CMS Conditions applied—testified as follows:

Q. And would you agree that it says right here that “The governing 

body of the hospital must be responsible for services furnished in the 

hospital whether or not they are furnished under contracts[]?[”]

A. Yes, that’s what it says.

Q. Okay. So can we tell this jury -- would it be fair to tell this 

jury that there is no distinction between contracts, anesthesiologists, CRNAs? It’s 

still the hospital’s responsibility?

A. Correct. [Emphasis added.] 
40

Davis also questioned Dr. Montgomery regarding other sections of the CMS 

Conditions, including Sections 482.21, .23, and .25 and asked him whether he “fe[lt] 

bad” about not having a medication-handling policy that Davis asserted was required 

by “federal regulations.” 

During closing argument, Davis highlighted the CMS Conditions and related 

testimony, reminding jurors of “[t]hese federal regulations that say that [a hospital is] 

responsible for [its] contracted services” and Dr. Dorman’s testimony that “the 

hospital’s ultimately responsible.” Davis also implied that the CMS Conditions 

imposed vicarious liability on hospitals for contracted services’ negligence:

Now, over and over you saw all kinds of things in this trial talking about 

what the hospital’s responsibilities are for contracted services. And,

basically, when you go back and you read them all, there’s no distinction. 

The -- the standards of safety that apply in a hospital are there for the 

patient, and it doesn’t matter who’s performing those services. It can be 

a contractor, it can be a hospital staff employee, and the hospital can’t 

stand in front of you and say, Well, those are professionals. We wash 

our hands of it. Because the law says that they cannot do that. They cannot do 

that. [Emphasis added.]

3. Harris’s Objections and Error Preservation

Harris repeatedly objected—both before and during trial—to the admission of 

the CMS Conditions and any testimony concerning them on relevance and Rule 403 

grounds. See Tex. R. Evid. 401–03. As early as the November 2021 pretrial 

conference, Harris raised the issue of the CMS Conditions’ admissibility via a motion 

to exclude evidence under Rule 104 in which it argued that the CMS Conditions and 

any testimony pertaining to them should be excluded because such evidence’s 
41

probative value was “substantially outweighed by a danger of unfair prejudice to 

[Harris], confusing the issues . . . , and misleading the jury.”22 See Tex. R. Evid. 104, 

403. In addition, Harris filed a motion to strike Dr. Abookire’s expert testimony 

equating certain CMS Conditions with the applicable standard of care. The trial court 

signed orders denying both of these pretrial motions on March 3, 2022. 

During trial, Harris objected to Dr. Abookire’s testifying about the CMS 

Conditions and to the admission of any documents pertaining to them—including the 

proffered excerpts from the regulations themselves. The trial court overruled these 

objections and granted Harris a running objection. Harris also objected to Davis’s use 

of the CMS Conditions during his cross-examination of Dr. Montgomery. Again 

these objections were overruled, and a running objection was granted. In addition, 

Harris filed written objections seeking the exclusion of Dr. Dorman’s videotaped 

testimony containing references to the CMS Conditions on the grounds that it 

conflated the CMS Conditions with the standard of care and was thus irrelevant and 

likely to confuse the jury. See Tex. R. Evid. 401–03. Harris raised the same objections 

22Harris’s argument during the pretrial hearing made clear that it objected to the 

CMS Conditions’ admission on relevance grounds as well:

[The CMS Conditions] have nothing to do with establishing the standard 

of care or -- or altering what the standards of state tort law is regarding 

agency. [They are] not going to make . . . you, as a hospital, vicariously 

responsible, or the agent of the independent contractor group that you 

contracted with. 
42

in court prior to the playing of Dr. Dorman’s testimony, but the trial court overruled 

Harris’s objections and granted a running objection. 

Thus, Harris timely, diligently, and consistently objected to the admission of 

the CMS Conditions—and any testimony or documentary evidence pertaining to 

them—and stated specific grounds for its objections. See Tex. R. Evid. 103(a)(1); see 

also Edgeworth v. Wilson, 113 S.W.3d 559, 562 (Tex. App.—Texarkana 2003, no pet.)

(admonishing that “a party should object every time inadmissible evidence is offered;

otherwise, any error in overruling a previous objection is cured”). Although this is 

generally sufficient to preserve error, see Tex. R. App. P. 33.1(a); Tex. R. Evid. 

103(a)(1), Davis contends that Harris waived its evidentiary complaint by failing to 

request a limiting instruction, see Tex. R. Evid. 105(b)(1). We disagree. 

Davis argues that because the CMS Conditions were relevant to—but not 

determinative of—whether Harris had violated the standard of care and whether 

Sundance and Dr. Leitch were Harris’s agents, Harris was required to request a 

limiting instruction advising the jury that the CMS Conditions “[were] not 

determinative” on these issues in order to preserve error. See Tex. R. Evid. 105(b)(1). 

But Davis’s argument misconstrues the nature of Harris’s objections. Under Rule 

105(b), a limiting instruction is required to preserve error only when the court 

“admit[s] evidence that is admissible . . . for [one] purpose . . . but not . . . for another 

purpose.” Id. But Harris did not concede that the CMS Conditions were admissible 

for any purpose; rather, it argued (correctly) that Davis’s purpose for offering them 
43

into evidence—to show that Harris had an overarching right of control over 

Sundance and Dr. Leitch and had therefore violated the standard of care—was not 

proper. Thus, Davis’s suggested limiting instruction—which merely addresses the 

weight to be given to the CMS Conditions, not the purpose for which they were 

admitted—would not have cured the fundamental problem underlying Harris’s 

objection.23 

Accordingly, we conclude that Rule 105(b)(1) is inapplicable and that Harris’s 

myriad timely and specific objections were sufficient to preserve its complaint 

regarding the admission of the CMS Conditions and any testimony concerning them. 

See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); see also Mock v. Nat’l Collegiate 

Student Loan Tr. 2007-4, No. 01-17-00216-CV, 2018 WL 3352913, at *3 (Tex. App.—

Houston [1st Dist.] July 10, 2018, no pet.) (mem. op.) (“To preserve error in a trial 

court’s ruling to admit evidence, the complaining party must normally make a timely 

23Even if we were to broadly construe Davis’s preservation argument as a 

contention that Harris was required to request a limiting instruction to preserve its 

Rule 403 objection if the CMS Conditions were at all relevant, see Birchfield v. Texarkana 

Mem’l Hosp., 747 S.W.2d 361, 365 (Tex. 1987), we would nevertheless be required to 

consider the efficacy of such a limiting instruction, see Lopez v. State, 288 S.W.3d 148, 

165 (Tex. App.—Corpus Christi–Edinburg 2009, pet. ref’d); cf. Russell v. State, 113 

S.W.3d 530, 545 (Tex. App.—Fort Worth 2003, pet. ref’d) (recognizing that certain 

types of evidence cannot “be filed away in some compartment of the mind and 

considered for only a limited purpose”). Given Davis’s purpose in offering the CMS 

Conditions—to effectively erase important distinctions in Texas law between 

employees and independent contractors—and his argument to the jury that these 

regulations were “the law,” we cannot conclude that a limiting instruction would have 

been efficacious. “[I]f you throw a skunk into the jury box, you can’t instruct the jury 

not to smell it.” Dunn v. U.S., 307 F.2d 883, 886 (5th Cir. 1962).
44

and specific objection and obtain a ruling from the trial court.” (first citing Tex. R. 

App. P. 33.1(a); and then citing Tex. R. Evid. 103(a)(1))). Having determined that 

error was preserved, we turn to the merits of Harris’s evidentiary complaint. 

4. Analysis

“To be admissible under the Texas Rules of Evidence, evidence must be 

relevant to the issues in the case.” Trencor, Inc. v. Cornech Mach. Co., 115 S.W.3d 145, 

152 (Tex. App.—Fort Worth 2003, pet. denied) (citing Tex. R. Evid. 402). “Evidence 

is ‘relevant’ if ‘it has any tendency to make a fact of consequence to the action more 

or less probable than it would be without the evidence.’” In re N. Cypress Med. Ctr. 

Operating Co., 559 S.W.3d 128, 131 (Tex. 2018) (orig. proceeding) (quoting Tex. R. 

Evid. 401). Whether a fact is “of consequence” is determined by the parties’ 

pleadings. See San Antonio Traction Co. v. Higdon, 123 S.W. 732, 734 (Tex. App.—San 

Antonio 1909, writ ref’d); see also In re Allstate Fire & Cas. Ins. Co., 617 S.W.3d 635, 643 

(Tex. App.—Houston [14th Dist.] 2021, orig. proceeding) (“Determining which facts 

are ‘of consequence’ to the action necessarily begins with a review of the pleadings.”). 

The test for relevance is satisfied if there is directly, or by inference, some logical 

connection between the evidence and the fact to be proven. Republic Waste Servs., Ltd. 

v. Martinez, 335 S.W.3d 401, 406 (Tex. App.—Houston [1st Dist.] 2011, no pet.) 

(citing Boswell v. Brazos Elec. Power Coop., Inc., 910 S.W.2d 593, 601 n.3 (Tex. App.—

Fort Worth 1995, writ denied)). 
45

But even relevant evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury. Tex. R. Evid. 403; Pack v. Crossroads, Inc., 53 S.W.3d 492, 500 

(Tex. App.—Fort Worth 2001, pet. denied). “‘Unfair prejudice’ . . . means an undue 

tendency to suggest decision on an improper basis, commonly, though not necessarily, 

an emotional one.” Diamond Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 

2018). “‘Confusion of the issues’ means ‘a tendency to confuse or distract the jury 

from the main issues in the case.’” Nguyen v. State, No. 02-23-00168-CR, 2024 WL 

1451977, at *6 (Tex. App.—Fort Worth Apr. 4, 2024, pet. filed) (mem. op., not 

designated for publication) (quoting Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. 

Crim. App. 2006)).24 “‘Misleading the jury’ ‘refers to a tendency of an item of 

evidence to be given undue weight by the jury on other than emotional grounds’—for 

example, scientific evidence that could mislead a jury ‘that is not properly equipped to 

judge the probative force of the evidence.’” Id.; see also In re Commitment of Summers, 

No. 01-19-00738-CV, 2021 WL 3776751, at *8 (Tex. App.—Houston [1st Dist.] Aug. 

26, 2021, no pet.) (mem. op.). “When determining [the] admissibility of evidence 

under Rule 403, trial judges must balance the probative value of the evidence against 

relevant countervailing factors.” JBS Carriers, Inc., 564 S.W.3d at 836.

24Because Rule 403 applies in both civil and criminal cases, we may look to 

decisions in criminal cases for guidance in its interpretation. Cf. In re D.T., 625 S.W.3d 

62, 72 (Tex. 2021) (looking to criminal law to review similar concepts); Heckman v. 

Williamson Cnty., 369 S.W.3d 137, 147 (Tex. 2012) (finding guidance in the decisions of 

the Court of Criminal Appeals).
46

Davis offered the CMS Conditions to support his vicarious-liability theory by 

showing (1) that Harris had retained a right of control25 over Sundance and Dr. Leitch 

and (2) that under the applicable standard of care, Harris was ultimately responsible 

for their actions (or inaction). But as shown above, Davis’s vicarious-liability theory is 

invalid under Texas law. Thus, the admission of the CMS Conditions served no 

purpose other than to impute liability to Harris for Sundance’s and Dr. Leitch’s 

negligence in contravention of Texas agency law even though, as discussed in greater 

detail below, the CMS Conditions do not purport to preempt state laws regarding 

agency, to impose tort liability, or to create a nondelegable duty for hospitals to 

provide competent medical care to their patients. See 42 C.F.R. § 482.1(b) (“[T]he 

provisions of this part serve as the basis of survey activities for the purpose of 

determining whether a hospital qualifies for a provider agreement under Medicare and 

Medicaid.”). Accordingly, even if we were to assume that the CMS Conditions were 

at least minimally relevant, see Tex. R. Evid. 401, their slight probative value was 

substantially outweighed by the danger of unfair prejudice, confusing the issues, or 

misleading the jury, see Tex. R. Evid. 403; JBS Carriers, Inc., 564 S.W.3d at 836. 

Davis contends that under Texas law, the CMS Conditions are relevant to—but 

not determinative of—the issue of the applicable standard of care. See, e.g., Hernandez 

25Harris’s purported right of control over Sundance and Dr. Leitch was also a 

key element of Davis’s Redinger claim. See Redinger, 689 S.W.2d at 418. But as noted 

above, this claim—like Davis’s vicarious-liability theory—was not legally viable. See 

supra note 16.
47

v. Nueces Cnty. Med. Soc’y Cmty. Blood Bank, 779 S.W.2d 867, 871 (Tex. App.—Corpus 

Christi–Edinburg 1989, no pet.) (recognizing that “[i]t is well-established that state 

health regulations, national standards, and organizational bylaws are admissible to 

define the standard of care customarily offered” but noting that “such evidence does 

not usually conclusively establish that a health care provider fulfilled its duty of care” 

and “is only one factor to consider”); see also Doe v. Kerrville I.S.D., SA-21-CV-00369-

XR, 2023 WL 5313889, at *6 (W.D. Tex. Aug. 16, 2023) (order) (“Experts routinely 

opine on the standard of care; references to statutes and administrative regulations is 

one method of establishing a standard of care.”). 

But as Harris points out, numerous courts around the country have held that 

because the CMS Conditions’ self-described limited purpose—to determine whether a 

hospital qualifies as a provider under Medicare and Medicaid—has nothing to do with 

state tort liability, they are wholly irrelevant to the standard-of-care issue: 

• Blackmon v. Tenet Healthsystem Spalding, Inc., 653 S.E.2d 333, 340 (Ga. Ct. App. 

2007) (rejecting appellant’s argument that the CMS Conditions provided a basis 

to impose liability on a hospital because they “do[] not purport to impose state 

tort liability on hospitals for the negligence of their independent contractors” 

and clarifying that whether a hospital was liable under state agency law was 

“wholly different” from whether it was complying with Medicare 

reimbursement regulations), rev’d in part on other grounds, 667 S.E.2d 348 (Ga. 

2008); 

• Godwin v. Univ. of S. Fla. Bd. of Trs., 203 So. 3d 924, 931–32 (Fla. Dist. Ct. App. 

2016) (rejecting appellant’s argument that the CMS Conditions created a 

nondelegable duty for a hospital because they “do[] not purport to diminish or 

preempt state laws dealing with the traditional common-law theories of 

principal/agent and independent contractors”); 
48

• Tiplady v. Maryles, 120 A.3d 528, 543 (Conn. App. Ct. 2015) (rejecting 

appellant’s argument that the trial court had erred by striking a portion of her 

complaint alleging that the CMS Conditions create a nondelegable duty for a 

hospital “to ensure that independently contracted physicians do not conduct 

malpractice” because the regulations’ stated purpose is determining whether a 

hospital qualifies as a provider under Medicare and Medicaid); 

• DeHart v. Jones, 310 So. 3d 658, 696 (La. Ct. App. 2020) (holding that the 

“CMS[] Conditions[’] informed consent standards, as adopted by [the hospital], 

do not impose tort liability upon [the hospital] as a result of the surgical staff’s 

failure to ensure that [the plaintiff’s] informed consent form was properly filled 

out” (citing Godwin, 203 So. 3d at 931–32));

• Smith v. Surgery Ctr. at Lone Tree, LLC, 484 P. 3d 745, 755–57 (Colo. App. 2020)

(holding that CMS Conditions do not establish standards of medical care and 

cannot serve as the basis for a negligence per se claim). 

Given the persuasiveness of these authorities, we conclude that even if the CMS 

Conditions are relevant in some sense to the standard-of-care issue, their probative 

value in this regard is minimal.26

26The following overriding principle can be gleaned from the cases upon which 

Davis relies to support his contention that the CMS Conditions are relevant to the 

standard-of-care issue: the determining factor regarding an administrative regulation’s 

relevance in a particular case is whether it sets forth an actual, applicable clinical 

standard regarding patient care. See Reddic v. E. Tex. Med. Ctr. Reg’l Health Care Sys., 

474 S.W.3d 672, 676 (Tex. 2015) (acknowledging that “applicable regulations in some 

instances might bear on or evidence a standard of care” but noting that the appellee 

hospital had not “identif[ied] a commission or agency regulation that it sa[id]

evidence[d] a particular standard of care that both [was] substantively related to the 

provision of health care and underlie[d] [appellant’s] claim”); Hernandez, 779 S.W.2d at 

868 (considering clinical guidelines promulgated by the American Association of 

Blood Banks that directly related to the provision of patient care); Kissinger v. Turner, 

727 S.W.2d 750, 756 (Tex. App.—Fort Worth 1987, writ ref’d n.r.e.) (holding that 

trial court did not err by excluding federal Medicare–Medicaid regulations because, 

inter alia, the plaintiff was not a Medicare or Medicaid patient and the regulations did 

not establish a standard of care for medical practice generally); Hickson v. Martinez, 707 

S.W.2d 919, 927 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (holding that trial court 
49

Nor do the regulations appear to have any relevance whatsoever regarding 

whether Harris retained a right of control over Sundance and Dr. Leitch. As 

discussed above, under Texas agency law, even though a contract purports to create 

an independent-contractor relationship, the parties’ relationship may nevertheless give 

rise to a respondeat superior claim if the principal retains a right of control over the 

contractor’s work. See Farlow, 284 S.W.3d at 911. This right of control may be proven 

by two types of evidence: (1) other language within the parties’ contract or 

(2) extrinsic evidence showing “instances of actual control by the principal.” Id. But 

the CMS Conditions do not fall into either of these two categories. Thus, given that 

they do not purport to preempt state agency laws or to impose tort liability, see

42 C.F.R. § 482.1(b); Godwin, 203 So. 3d at 931–32; Blackmon, 653 S.E.2d at 340, we 

fail to see how the CMS Conditions could have any relevance to the right-of-control 

issue. Texas law is clear that a principal’s right of control must be based on either the 

terms of the contract with the purported agent or a pattern of conduct, see Farlow, 

284 S.W.3d at 911; whether a hospital is in compliance with the CMS Conditions for 

purposes of participating in Medicare and Medicaid has no bearing on this issue, see

Blackmon, 653 S.E.2d at 340. Accordingly, to the extent that the CMS Conditions had 

any relevance on the right-of-control issue, it solely pertained to Davis’s effort to 

erred by excluding federal regulation specifically requiring hospitals to obtain an 

adequate medical history where the appellants had alleged that the hospital and the 

care providers were negligent precisely for having failed to do so). The CMS 

Conditions at issue here do not set forth such a clinical standard. Thus, to the extent 

they have any relevance, it is minimal.
50

erase important distinctions in Texas law between employees and independent 

contractors; this is not a valid basis for their admission.

Whatever slight probative value the CMS Conditions might possess is 

substantially outweighed by the danger of misleading the jury into believing that the 

CMS Conditions imposed vicarious liability on Harris by creating a nondelegable 

duty27 for Harris to provide competent medical care to its patients or otherwise 

preempting Texas agency law. See Tex. R. Evid. 403; JBS Carriers, Inc., 564 S.W.3d at

836. Courts have routinely recognized that admitting regulations that are only 

tangentially related to a plaintiff’s negligence claim poses a significant danger of 

misleading the jury because of the tendency for jurors to place undue emphasis on 

such regulations. See Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 672–73 (5th Cir. 

1999) (holding that trial court did not abuse its discretion by excluding testimony 

27“[W]hen a duty is imposed by law due to public safety concerns, and the 

imposition expressly identifies the party to bear the duty so imposed, the party cannot 

avoid its responsibility by delegating it to another not so expressly identified.” In re 

Gamble, 676 S.W.3d 760, 785 (Tex. App.—Fort Worth 2023, orig. proceeding) (first 

citing Fifth Club, Inc., 196 S.W.3d at 795; and then citing MBank El Paso, N.A. v. 

Sanchez, 836 S.W.2d 151, 153 (Tex. 1992)). Such duties are considered “nondelegable.” 

O’Connor’s Texas Causes of Action ch. 38-E (2022) (first citing MBank El Paso, 836 

S.W.2d at 153; and then citing Edwards v. Hammerly Oaks, Inc., 908 S.W.2d 270, 273 

(Tex. App.—Houston [1st Dist.] 1995), aff’d as modified, 958 S.W.2d 387 (Tex. 1997)). 

Under the theory of nondelegable duty, even if a principal assigns the responsibility 

for performing the duty to an independent contractor, the principal remains liable for 

any negligence in the performance of the duty. Gamble, 676 S.W.3d at 785 (quoting 

Collins v. Vivanco, 603 S.W.3d 843, 848 (Tex. App.—El Paso 2020, no pet.)). “A claim 

brought against a party based on a nondelegable duty is one of vicarious liability, not 

direct.” McAllen Hosps., L.P. v. Gonzalez, 566 S.W.3d 451, 457 n.3 (Tex. App.—

Corpus Christi–Edinburg 2018, no pet.). 
51

regarding environmental regulations “because the probative value of the evidence was 

outweighed by its potential for prejudice”); Sprankle v. Bower Ammonia & Chem. Co., 

824 F.2d 409, 416–17 (5th Cir. 1987) (holding that district court did not abuse its 

discretion by excluding OSHA regulations under Fed. R. Evid. 403 because “the 

danger of the jury placing undue emphasis on the . . . regulations substantially 

outweighed their probative value”); Varnell v. Serv. Merch. Co., 613 So. 2d 1042, 1043–

44 (La. Ct. App. 1993) (upholding trial court’s ruling excluding OSHA regulations on 

the grounds that “their prejudicial effect would outweigh their probative value”).28 

Indeed, Davis concedes that his purpose behind introducing the CMS 

Conditions was to support his vicarious-liability theory—that is, to advise the jury that 

Harris had a right of control over Sundance and Dr. Leitch and therefore could be 

held vicariously liable for their failure to implement and enforce a medicationhandling policy for the anesthesia department. But as shown above, Davis’s 

vicarious-liability theory is invalid under Texas agency law; while Harris may be 

directly liable for its own failure to formulate and enforce a medication-handling 

policy that applied to the anesthesia department, it cannot be held vicariously liable 

28As one of our sister courts has pointed out, cases—like those cited here—

upholding a trial court’s decision to exclude certain regulations under an abuse-ofdiscretion standard do not show that it would necessarily be an abuse of discretion for 

a trial court to admit the same regulations in another case with different facts. See 

Costilla v. Crown Equip. Corp., 148 S.W.3d 736, 740 (Tex. App.—Dallas 2004, no pet.). 

Although we agree with this general proposition, these cases nonetheless illustrate 

courts’ recognition of the potential danger posed by the admission of such 

regulations.
52

for Sundance’s or Dr. Leitch’s failure to do so. Thus, by admitting the CMS 

Conditions and allowing Dr. Abookire to rely on them as a basis for her standard-ofcare opinions, the trial court created a significant danger that the jury, mistakenly 

believing that Davis’s vicarious-liability claim had the backing of federal law, would 

find Harris liable based on an invalid legal theory. Because this danger substantially 

outweighed the regulations’ meager probative value, the trial court abused its 

discretion by admitting them. See Tex. R. Evid. 403; JBS Carriers, Inc., 564 S.W.3d at

836.

Davis argues that even if the trial court abused its discretion by admitting the 

CMS Conditions and related testimony, the error was harmless. We disagree.

First, Davis contends that because Dr. Abookire merely testified that the CMS 

Conditions made Harris responsible for establishing appropriate policies for the 

anesthesia department, not that they made Harris liable, this evidence was not harmful. 

But this wordplay amounts to legal legerdemain and fails to address the fundamental 

problem underlying the CMS Conditions’ admission. Davis acknowledges that 

“responsibility” equates with duty. Thus, the CMS Conditions—and Dr. Abookire’s 

testimony regarding them—served to advise the jury that Harris had a duty to control 

Sundance and Dr. Leitch and that their failure was Harris’s failure. Regardless of 

whether Dr. Abookire spoke in terms of responsibility or liability, the effect was the 

same—to mislead the jury into believing that Davis’s vicarious-liability theory was 

valid. 
53

Second, Davis argues that the error was harmless because the trial court did not 

submit his vicarious-liability theory to the jury and because the jury did not find the 

CRNAs or Dr. Leitch negligent. But the jury charge instructed the jury that “[a] 

hospital acts through its agents, employees, officers, and representatives, and those are 

the acts of the hospital.” The Committee on Pattern Jury Charges has made clear that 

this instruction is to be used “when the claim is for the hospital’s vicarious liability based 

on conduct of a hospital’s agents or employees.”29 Comm. on Pattern Jury Charges, 

29Although the jury charge instructed the jury “not [to] consider the acts or 

omissions of Robert Bruce Leitch, M.D. in his practice of medicine, Heather Goforth, 

CRNA, or Vicki Tucker, CRNA” when considering Harris’s negligence, this 

instruction did not preclude the jury from finding Harris vicariously liable for 

Sundance’s or Dr. Leitch’s failure to implement and enforce a medication-handling 

policy for the anesthesia department. First, the instruction did not even mention 

Sundance or proscribe the jury’s consideration of Sundance’s acts or omissions when 

evaluating Harris’s negligence. Second, it only prohibited the jury from considering 

Dr. Leitch’s “acts or omissions . . . in his practice of medicine.” [Emphasis added.] Thus, 

while this instruction prohibited the jury from holding Harris vicariously liable for 

Dr. Leitch’s negligence, if any, in providing patient care to Angela, it did not preclude 

the jury from holding Harris vicariously liable for Dr. Leitch’s acts or omissions while 

acting in a policy-making role. Because Davis’s theory was not that Harris was 

vicariously liable for Dr. Leitch’s negligent patient care but rather that it was 

vicariously liable for his failure to implement a medication-handling policy, the 

instruction not to consider Dr. Leitch’s omissions “in his practice of medicine” did 

not alleviate—much less eliminate—the harm caused by the trial court’s error. In any 

event, given Davis’s consistent use of the CMS Conditions to blur the lines that Texas 

law draws between independent contractors and employees and his argument to the 

jury that these regulations were “the law,” we cannot conclude that even a more 

robust instruction—one prohibiting the jury from contemplating any of Sundance’s or 

Dr. Leitch’s acts or omissions when considering Harris’s negligence—would have 

cured the error. See Bruton v. U.S., 391 U.S. 123, 129, 88 S. Ct. 1620, 1624 (1968) 

(“The naive assumption that prejudicial effects can be overcome by instructions to the 

jury . . . all practicing lawyers know to be unmitigated fiction.” (quoting Krulewitch v. 

U.S., 336 U.S. 440, 453, 69 S. Ct. 716, 723 (1949) (Jackson, J., concurring))); Dunn, 307 
54

State Bar of Tex., Tex. Pattern Jury Charges: Malpractice, Premises & Products PJC 50.2 & 

cmt. (2022) (emphasis added). Thus, there was a vicarious-liability submission 

through the trial court’s instruction. Further, the fact that the jury did not find the 

CRNAs or Dr. Leitch individually negligent does not render the error harmless. The 

jury found Sundance negligent and could have imputed Sundance’s negligence to 

Harris. Alternatively, the jury could have found Harris liable because it believed that 

under the CMS Conditions, Harris was ultimately responsible for the CRNAs’ 

mistake.

Finally, Davis argues that the admission of the CMS Conditions and related 

evidence could not have caused harm because the jury was not asked a question about 

whether a duty was owed. But this argument is unpersuasive. It is unsurprising that 

the jury was not directly asked whether a duty was owed because this is a question of 

law for the court to decide. Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 

2017); Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005); Greater Hous. Transp. Co. v. 

Phillips, 801 S.W.2d 523, 525 (Tex. 1990). But as Davis himself pointed out during 

oral argument, a jury’s determination as to whether a duty was breached is necessarily 

informed by its understanding of what the duty is. Clearly, Davis’s purpose in 

offering the CMS Conditions and related evidence was to influence the verdict by 

impressing upon the jury that Harris had a nondelegable duty to exercise control over 

F.2d at 886 (“It is better to follow the rules than to try to undo what has been 

done. . . . [O]ne ‘cannot unring a bell[.]’”).
55

its independent contractors; otherwise, there would have been no basis for admitting 

this evidence. See W. Union Tel. Co. v. Stiles, 34 S.W. 438, 438 (Tex. 1896) (“If the 

evidence is not to influence the verdict, why should it be admitted at all?”). Thus, the 

mere fact that the jury was not directly asked a duty question did not render the CMS 

Conditions’ erroneous admission harmless. 

In sum, there was a significant danger (1) that the jury would mistakenly believe 

that the CMS Conditions preempted Texas agency law and imposed a nondelegable 

duty on Harris to provide competent medical care to its patients and (2) that this 

mistaken belief would cause the jury to find Harris liable based on an invalid legal 

theory. Because this danger substantially outweighed the regulations’ slight probative 

value, the trial court abused its discretion by admitting the CMS Conditions and the 

testimony concerning them. See Tex. R. Evid. 403; JBS Carriers, Inc., 564 S.W.3d at

836. Further, because this erroneously admitted evidence was crucial to a key issue,

we conclude that it was harmful. See Reliance Steel & Aluminum Co., 267 S.W.3d at 873. 

Indeed, because we cannot—in light of the jury charge’s vicarious-liability 

instruction—determine whether the jury based its negligence finding against Harris on 

a valid legal theory, we must conclude that harm is present. Cf. Cortez ex rel. Estate of 

Puentes v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 91 (Tex. 2005) (“[W]hen a jury bases 

its finding on an instruction that ‘commingles invalid theories of liability with valid 

theories,’ we do not hold the error harmless because the most that a reviewing court 
56

can say is that the verdict might have been reached on a valid theory.” (quoting Crown 

Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000))).

Accordingly, we sustain Harris’s first issue.

IV. CONCLUSION

Having sustained Harris’s first issue and overruled its second issue, we reverse 

the trial court’s judgment and remand this case for a new trial. Given our disposition 

of Harris’s first two issues, we need not—and therefore do not—address the parties’ 

remaining issues. See Tex. R. App. P. 47.1. 

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: August 1, 2024